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All Things Considered:Recent OAH Decisions on

SES Fall 2010

Assessment and Eligibility

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Overview

Konocti: Justifying a lack of assessment

Anaheim: Analyzing a psychoeducational assessment

Lakeside: Defending a finding of no eligibility

Garvey: Keeping control of your case

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Student v. Konocti Unified School Dist. (OAH 2010)

Justifying a lack of assessment

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Student v. Konocti Unified School Dist. (OAH 2010)

• The Bottom Line – Good supports, programs, and interventions

matter

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Student v. Konocti Unified School Dist. (OAH 2010)

• Background – Ten-year-old boy attended the same district

school through third grade – Never assessed for special education

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Issues

• During Student’s third grade year, did District deny FAPE by failing to– assess Student for special education?– qualify Student for special education services

as OHI and provide special education?

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• Student’s early school years

• Third grade year– Disciplinary referrals – Academic progress– Classroom behavior

• Student Study Team (SST) Meeting

Facts

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Facts

• Social skills academy assessments

• Implementation of the 504 Plan and social skills academy

• Student's ability to control his behavior

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Law

• Child Find– Obligation applies even though student

advances from grade to grade– Duty is not dependent on any action or

inaction by parents– The threshold for suspecting a disability is

relatively low. (Dept. of Educ. v. Cari Rae S. (D. Hawaii 2001) 158 F.Supp.2d 1190)

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Law

• General education resources– Students "shall be referred for special

educational instruction and services only after the resources of the regular education program have been considered and, where appropriate, utilized"

(Ed. Code, § 56303.)

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Contentions

• Student contended– Student’s behavioral

problems put District on notice to assess

• Student requested compensatory education

• District contended– District did not have

any reason to assess Student

• He made adequate educational progress

• District met his needs with other educational resources

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Decision

• The District prevailed on all issues … all of Student's requests for relief were denied!

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Rationale

• Student's academic progress and lack of disciplinary referrals

• Student's demonstrated ability to control his behaviors

• No obligation to find Student eligible for special education because no obligation to assess him

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• A program which addressedADHD behaviors rather than ignoring or denying them

• Student was able to perform when motivated and progressed in his academics without special education and related services

Tipping Points

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Lessons Learned

• Following procedures pays off – The District met its procedural requirements– This built District credibility with the ALJ

• Implementation pays off – It is one thing to develop a good

plan/program, but another to actually implement it!

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• Evidence is invaluable… – Evidence of educational progress – Evidence of district actions– Evidence of student behavior

• Consistent testimony is key!

• Lack of counter-evidence

• Subsequent eligibility not relevant

Lessons LearnedSetting Up Your Case

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Anaheim City School Dist. v. Student (OAH 2010)

Analyzing a psychoeducational assessment

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Anaheim City School Dist. v. Student (OAH 2010)

• The Bottom Line – Whatever you do, use a credentialed school

psychologist for a psychological assessment!

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Anaheim City School Dist. v. Student (OAH 2010)

• Background– Eight-year-old girl with autism– After Parent requested IEEs, District filed for

hearing to defend its assessments

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Issues

• Was District's 2009 psychoeducational assessment appropriate, and if not, is District required to fund an IEE?

• Was District's 2009 functional behavioral assessment (FBA) appropriate, and if not, is District required to fund an IEE?

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• Psychoeducational assessment by District’s outside assessor

• IEP team meeting

• Functional Behavior Assessment Report by District’s School Psychologist

• Testimony at hearing

Facts

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Facts• Student’s expert exposed that District’s

assessment failed to– Convert raw scores – Properly compute converted scores resulting in

incorrect scaled scores – Follow the test instructions, resulting in incorrectly

scored test protocols – Accurately compute the overall intelligence index – Report results from all tests administered– Select the appropriate theoretical model

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Facts

• District’s assessor admitted errors but stated they did not impact findings

• Student’s expert disagreed!

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Law

• As filing party, District had the burden of proof

• Psychological assessments require a credentialed school psychologist, including any individually administered test of intellectual or emotional functioning

• An FBA must meet the IDEA's legal requirements for an assessment

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Contentions

• District contended– Student was not entitled to IEEs at public

expense– District’s psychoeducational assessment and

school psychologist’s FBA were properly conducted and met all the necessary legal and educational requirements

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Contentions

• Student contended– District assessment not appropriate because

• District’s assessor was not a school psychologist • multiple errors in use and scoring of assessment

tools

– District failed to evaluate and consider Student's "on-task" issues thus making the FBA inappropriate

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Decision

• District’s psychoeducational assessment was not properly conducted– District ordered to provide Student an IEE at

public expense

• District’s FBA was properly conducted – District had no duty to fund an IEE

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Rationale• The Psychoeducational assessment

– The “scoring errors were numerous and problematic and, therefore, invalidated the overall assessment results”

– District did not use a credentialed school psychologist

• The FBA– District complied with the legal requirements

for conducting the FBA

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Tipping Points

• District’s assessor was not acredentialed school psychologist

• Student’s expert thoroughly analyzed assessments and had a credible critique of District’s assessor’s work

• There were numerous errors in test administration

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Lessons Learned

• Use a credentialed school psych! – The failure to use a

credentialed school psychologist doomed the District

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Lessons LearnedSetting Up Your Case

• Beware of overcompensating …– ”No good deed goes unpunished!”

• Check and double check assessment reports – Use a SELPA or other district psychologist to review

any reports critical to your case – Find someone to play devil’s advocate with key

documents or witnesses

• Speculation: Why the independent assessor?

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Student v. Lakeside JointSchool Dist. (OAH 2010)

Defending a finding of no eligibility

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Student v. Lakeside JointSchool Dist. (OAH 2010)

• The Bottom Line – Sometimes fear is an appropriate response

and not a sign of emotional disturbance … or, just because the facts are crazy doesn’t mean the student is ED!

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Student v. Lakeside JointSchool Dist. (OAH 2010)

• Background– 12 year-old student resided with his adoptive

parents, was diagnosed as having reactive attachment disorder

– District had assessed Student for eligibility under ED the year before but found not eligible

– ALJ agreed not eligible

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Facts • Events prior to seventh grade

– Summer camp• September 2008 IEP team meeting

– Truancies– Review of assessments– Academic progress– Diagnosis of depression?

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• Student’s behavior at school– Student performed at grade level– Student’s teachers reported Student did not

seem depressed – Student had friends, was on task, was not a

behavior problem, and did not seem withdrawn

Facts

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Issue

• Should the District have found Student eligible for special education and related services under the disability category of emotional disturbance (ED) at any time from July 29, 2008 through March 9, 2009?

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Law

• The “Snapshot Rule” -- an IEP is evaluated in light of information available to the IEP team at the time it was developed; it is not judged in hindsight

(Adams v. Oregon (9th Cir. 1999).)

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Law

• Emotional disturbance -- a condition exhibiting one or more of five characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance

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Law• OSEP on a “long period of time” and to a

“marked degree" – A “long period of time" is from two to nine

months– A “marked degree" generally refers to the

frequency, duration or intensity of a student's emotionally disturbed behavior in comparison to the behavior of his peers and/or school and community norms

(Letter to Anonymous, (OSEP 1989).)

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Law

• Student claimed eligibility as ED under– a general pervasive mood of unhappiness or

depression– a tendency to develop physical symptoms or

fears associated with personal or school problems

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Contentions

• Student contended– He qualified for special education and related

services as a student with ED • “School authorities did not view Student as

depressed because he denies his depression and is so skilled at hiding it that it was not readily visible to District employees”

• Student’s fears, related to the Doe family, made him eligible as ED

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Contentions

• District Contended– Student was not eligible for special education

and related services at any relevant time

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Decision

• The District prevailed on all issues!

• Student was not eligible for special education and related services under the category of emotional disturbance at the time in question

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RationaleNot Eligible Based on Depression

“Student's argument proves too much. If Student's depression was invisible to school personnel, the IEP team cannot be faulted for failing to act on it. [Student’s therapist’s] letter…which does not mention depression, suggests that Student's depression was invisible even to him at that time. The IEP team was not required to declare Student eligible for special education based on a condition no professional could perceive”

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RationaleNot Eligible Based on Fear

• The degree of Student’s fear – Was it to a marked degree?

• Student appeared happy

• The duration of Student’s fear – Was it for a long period of time?

• Student continued to go to school after the incident at summer camp

• The nature of Student's fear – Was it reasonable?

• “[I]t was fear almost any student would have in the circumstances”

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Tipping Points

• The District had multiple witnesses with consistent testimony

• District’s evidence showed that Student’s fear was not unreasonable given the circumstances

• The District looked carefully at the degree, duration and nature of Student’s fear

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Lessons Learned

• Criteria for ED may be strictly construed – This case looked closely at the criteria for ED,

including a good analysis of the degree, duration and nature of fear required for eligibility

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Lessons LearnedSetting Up Your Case

• Don’t be afraid to tell the whole story – Without sensationalizing the remarkable facts,

the District did a great job of setting the entire stage in this case

– Strategy at hearing included providing information about Student’s past, Parent’s motives, and Student's behavior and academic performance at school

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Student v. Garvey Elementary School Dist. (OAH 2010)

Keeping control of your case

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Student v. Garvey Elementary School Dist. (OAH 2010)

• The Bottom Line – Do not abdicate your

responsibilities in favor of other agencies!

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Student v. Garvey Elementary School Dist. (OAH 2010)

• Background– Student, now in high school, was a dependent

child since 2 ½ years of age– Student abused and neglected– Student not previously eligible for special ed.

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Issues

• Was District's initial assessment of Student and its determination of eligibility invalid because it failed – to develop an assessment plan; and – to obtain consent from an individual

authorized to make educational decisions?

• Did the District fail to conduct an appropriate assessment?

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• Admission at Maryvale (LCI)

• Academic assessment by Logsdon (NPS)

• Maryvale’s clinical assessment

• IEP team meeting and appointment of surrogate

Facts

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Law

• Informed parental consent is required before formal assessment and initial special education placement

• Parents are required members of the IEP team

• School districts convening an IEP team meeting must take steps to ensure parental participation

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Law

• A pupil's interests and concerns must be considered by the IEP team and, whenever appropriate, the pupil should be part of the IEP team meeting

• A school district's appointment of a surrogate is limited by statute

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Contentions

• Student contended– Maryvale's clinical evaluation was not a

special education assessment– District's initial assessment of Student and

determination of eligibility for special education was invalid

– Student was inappropriately identified as a pupil with ED

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Contentions

• District contended– It obtained the required consent for

assessment – It obtained the required consent for special

education and consent to the IEP– Any procedural violations that occurred did

not result in the denial of FAPE because Legal Guardian understood what would happen and did not object

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Decision

• Student prevailed on all issues– The assessments, determination of eligibility

for special education and IEP were developed without the consent or participation of Legal Guardian

– The District was ordered to expunge Student's educational records of Student's IEP, Maryvale’s clinical evaluation and Student's identification as a pupil with ED

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Rationale

• Invalid initial assessment because of the absence of an assessment plan

• Failure to obtain informed parental consent resulted in the denial of FAPE

• Appointment of surrogate was improper

• Assessments were not appropriate

Remedy: Expungement of records!

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Tipping Points

• District improperly relied on other entities

• No informed consent

• Failure to complete a valid assessment

• Student should have attended the IEP team meeting

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Lessons Learned

• Do not abdicate responsibility to nonpublic agencies, overtly or in practice

• Parent/Guardian contact is critical. Informed consent is the basis for most special education action

• Pay attention to every student• Beware of informal practices and think about

putting them in writing • It’s not the thought that counts!

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Lessons LearnedSetting Up Your Case

• Clean up procedural messes

• Get it in writing!

• Make sure you have your own witnesses

• Obtain your own information

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Conclusion

• Schools need to address behavioral problems but not necessarily through special education

• If you do assess -- assess carefully!

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Q & A

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Enjoy your lunch!Presentations will resume at 1:00 p.m.